§ 670. Words necessary to create a promise. No form of words is necessary to create a promise or covenant; all that is essential is that on a fair interpretation it shall appear that the alleged promisor has agreed to do the act in question.23 Not only may promises exist then, where the Bac. 23 In Hale v. Finch, 104 U. S. 261, 268, 26 L. Ed. 732, Harlan, J., for the court, said: "It is undoubtedly true, as argued by counsel, that neither express words of covenant, nor any particular technical words, nor any special form of words, is necessary in order to charge a party with covenant. 1 Roll. Abr. 518; Lant v. Norris, 1 Burr, 287; Williamson v. Codrington, 1 Ves. 511, 516; Courtney v. Taylor, 7 Scott, N. R. 749. 'The law,' says Bacon, 'does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant.' Abr., Covenant, A. So in Sheppard's Touchstone, 161, 162, it is said: "There need not be any formal words, as 'covenant,' 'promises,' and the like, to make a covenant on which to 'ground an action of covenant, for a covenant may be had by any other words; and upon any part of an agreement in writing, in whatsoever words it be set down, for anything to be or not to be done, the party to or with whom the promise or agreement is made may have his action upon the breach of the agreement.' Mr. Parsons says, 'Words of proviso and condition will be construed into words of covenant, when such is the apparent intention and meaning of the parties.' 2 Parsons, Contracts, 23. There are also cases in the books in which it has been held that even a recital in a deed may amount to a covenant. Farrall v. Hilditch, 5 C. B. (N. S.) 840; Great Northern Railway Co. v. Harrison, 12 C. B. 576; Severn and Clerk's Case, 1 Leon. 122. And there are cases in which the instrument to be construed was held to contain both a condition and a covenant; as, 'If a man by indenture letteth lands for years, provided always, and it is covenanted and agreed between the said parties, that the lessee should not alien.' It was adjudged that this was 'a condition by force of the proviso, and a covenant by force of the other words.' Co. Litt. 203 b. But according to the authorities, including some of those above cited, and from the reason of those above cited, and from the reason and sense of the thing, a covenant will not arise unless it can be collected from the whole instrument that there was an agreement, or promise, or engagement, upon the part of the person sought to be charged, for the performance or non-performance of some act. Comyns, in his Digest (Covenant, A, 2), says that, 'any words in a deed which show an agreement to do a thing, make a covenant,' 'but,' says the same author, 'where words do not amount to an agreement, covenant does not lie; as, if they are merely conditional to defeat the estate; as, a lease, provided and upon condition that the lessee collect and pay the rents of his other houses.' Comyns, Dig., Covenant A, 3. The language last quoted is found also in Platt's Treatise on the Law of Covenants. Law Library, vol. iii. p. 17. It there appears in connection with his reference to the case where A. leased to B. for years, on condition that he should acquit the lessor of ordinary and extraordinary charges, and should keep and leave the houses at the end of the term in as good plight as he found them. In such case, the author remarks, the language is in terms that of promise, but also where the agreement shows that the parties must have intended an obligation though they failed so to state in clear terms. These promises implied in fact, as they may be called, are numerous. A notable example is that of a bond. "Until well after Lord Coke's time the only consequence of breaking the condition of a bond was an obligation to pay the penalty. The obligor was held to have an election between performing the condition and payment." 24 "It seems to have been held within half a century after Hulbert v. Hart, that, under some circumstances at least, a bond would be construed to import a promise of the event constituting the condition." 25 This illustration of words not strictly appropriate for a promise being construed as such, is an extreme one, for the conclusion seems based on the necessity of finding a justification for limiting the damages on the bond to the actual injury suffered by breach of the condition.26 Debt for the penal sum not covenant for non-performance of the condition remained the ordinary remedy and "the practice of recovering damages beyond the penalty of a money bond is unknown, a condition of things which could hardly exist if covenant would lie on such an agreement." 27 Clearer cases of promises implied in fact are the promises implied in every bilateral contract not only not to prevent performance by the other party of the performance by which he will become entitled to receive counter performance, but also to cooperate in such performance if coöperation is necessary from the nature of the case. 28 In a contract to buy and sell, each party thus binds himself to accept the performance of the other even if he does not in terms agree to do so. lessee was held liable to an action for omitting to leave the houses in good plight, for here an agreement was implied."" "Stewart v. Griffith, 217 U. S. 323, 328, 54 L. Ed. 782, by Holmes, J., citing: Bromage v. Genning, 1 Roll. R. 368; 1 Inst. 206 b; Hulbert v. Hart, 1 Vern. 133 (1682). "Ibid., citing: Hobson v. Trevor, 1 Strange, 533, S. C., 2 P. Wms. 191 (1723); Anonymous, Moseley, 27 (1728); Roper v. Bartholomew, 12 Price, 797, 811, 822, 826, 832; Hooker v. Pynchon, 8 Gray, 550, 552. See also Martin v. Taylor, 1 Wash. C. C. 1; New Britain v. New Britain Tel. Co., 74 Conn. 326, 50 Atl. 881, 1015; Philbrook v. Burgess, 52 Me. 271; Clark v. Bush, 3 Cow. 151; Douglas v. Hennessy, 15 R. I. 272, 3 Atl. 213, 7 Atl. 1, 10 Atl. 583. 26 See infra, § 774. 27 Sedgwick on Damages, § 679. See also infra, § 1414. 28 See infra, § 1293. a Whether one who has made a conditional promise undertakes impliedly to make the condition possible, depends on reasonable inferences to be drawn in each case. One who promises to pay for a business or a franchise a percentage of the profit realized therefrom must generally be understood to promise impliedly that he will continue to exercise the business from which the profit is to be derived.28 A promise to pay wages when the employer resumed work or disposed of his property was held to imply an obligation to do one or the other within a reasonable time.29 A promise to pay when money was collected from adjoining owners implied an undertaking that the promisor was in a position to collect it and would do so. 292 Promises to pay when able on the other hand are not usually held to imply a promise to become able; 30 and the retainer of a lawyer coupled with a promise to pay him a further sum if his services are required implies no promise to require them.31 § 671. Words necessary to create a condition. Any words will create a condition which express, when properly construed, the idea that the performance of the promise is dependent on some other event. "For the most part conditions have conditional words in their frontispiece and do begin therewith." 32 The early cases on conditions relate generally to estates in land, but the principles involved are the same as in covenants or promises. In the early books there are said to be three words most proper for the purpose: proviso, ita quod, and sub conditione; but there are also other appropriate words as-si, or si contingat.33 A great variety of words are now regarded as equally fit for the creation of a condition. Not only those mentioned above, but such words as "when, "after," or "as soon as," clearly indicate that the promise is not to be performed except upon a condition. Whether a present participle makes an express condition has involved Worthington v. Sudlow, 21 L. J. Q. B. (N. S.) 131. 30 See infra, § 804. 31 See further, infra, § 1015. 32 Sheppard's Touchstone, 121. some difference of decision; as for instance where A promises B to do something, B "paying" a certain sum or "performing" a certain service, As matter of English construction such words seem to impose a condition.34 Not infrequently, however, courts have failed to treat them as necessarily conditional. 35 But the words which were most troublesome to the early lawyers, are "for" or "in consideration of." It may seem that a promise to pay $100 "for" a horse, necessarily imposes a condition, but it is to be observed that the price is equally paid "for" the horse, whether it is paid before or after the transfer of title or possession to the animal, or simultaneously therewith. 36 Lord Holt in a leading case, 37 laid down certain rules to determine the proper construction of these words, as follows:"First. If there be a day set for the payment of money, or doing the thing which one promises, agrees, or covenants to do, for another thing, and that day happens to incur before the time the thing for which the promise, agreement, or covenant, is made, is to be performed by the tenor of the agreement; there, though the words be 'that the party shall pay the money,' or 'do the thing for such a thing,' or, 'in consideration of such a thing,' after the day is past, the other shall have an action for the money or other thing, although the thing for which the promise, agreement, or covenant was made, be not performed; but, Secondly. If there be a day for the payment of the money, or doing of other act for another, and that day is to be after the performance of the thing for which the promise, &c., was made, there, if the agreement be to pay the money, or do other thing, 'for,' or 'in consideration,' or such other words that would make a condition precedent, there such things, for the doing or performing of which the other agrees to pay the money, 14 So held in Large v. Cheshire, 1 Vent. 147; Callonel v. Briggs, 1 Salk. 112; Anon., 4 Leon. 50; Thomas v. Cadwallader, Willes, 496. See also Westacott v. Hahn, [1918] 1 K. B. 495. 5 Hays v. Bickerstaffe, 2 Mod. 34; Boone v. Eyre, 2 W. Bl. 1312; Dawson v. Dyer, 5 B. & Ad. 584; Edge v. Boileau, 16 Q. B. D. 117; De Lancey v. Ganong, 9 N. Y. 9. 36 In the following cases such words were held to create a condition. Anon., 15 Hen. VII. f. 10 b, pl. 7; Brocas' Case, 3 Leon. 219. See also Peeters v. Opie, 2 Wm. Saund. 350. But otherwise in Anon., 1 Roll. Abr. 415; Pordage v. Cole, 1 Wm. Saund. 319. 37 Thorp v. Thorp, 12 Mod. 455. or do other thing, must be averred to maintain an action.” Later, these rules became the basis for implication of conditions without regard to the use of the word "for" or "in consideration of" 38 It is obvious that performance due by the terms of a contract at a later day can hardly be intended by the parties to be a condition precedent to liability for earlier performance, and though the converse proposition-that the earlier performance is intended to be a condition of the later is not an equally necessary proposition, it would generally hold true. But it does not always appear from a contract at what times or in what order performance is to take place unless the words relied on to establish a condition give an indication. In determining such a question at the present time little stress would be laid on refinements; rather the court would endeavor to interpret the meaning of the words used according to general principles of interpretation. A special rule of construction was established by the early cases which still might have some weight in case of ambiguity. If the performance which is urged to be a condition was also the subjectmatter of a promise by the party from whom the performance was due, so that even though the words were not treated as words of condition there is a remedy to secure the performance of the act, the construction will be favored that no condition is meant; while on the other hand, if there will be no remedy to secure the performance of the act in question, unless the words can take effect as words of condition, because the contract contains no promise to render the performance, the construction will be given that the words create a condition. 39 "Courts are disinclined to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed. The reason of this disinclination is that such a construnction prevents the court from dealing out justice to the parties according to the equities of the case. 9 40 38 See infra, §§ 820, 821. 39 Ughtred's Case, 7 Co. 9 b. 10 b.; Pordage v. Cole, 1 Wm. Saund. 319; Lock v. Wright, 1 Strange, 569; Smith v. Shelberry, 2 Mod. 33; Adams v. Guyandotte Valley Ry. Co., 64 W. Va. 181, 61 S. E. 341. 40 Front Street M. & O. R. Co. v Butler, 50 Cal. 574, 577, quoted and followed in Antonelle v. Kennedy & |