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.2 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

* 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.

3 See infra, §§ 91, 852.

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

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.5 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

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
S. W. 996, 1000.

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

precludes a promisor from taking advantage of a condition, the performance of which he himself has prevented, precludes him also from setting up a condition the performance of which he has made more difficult. "Where a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing that thing;" 11 and indeed if the situation is such that the coöperation of one party is an essential prerequisite to performance by the other, there is not only a condition implied in fact qualifying the promise of the latter,12 but also an implied promise by the former to give the necessary coöperation. 13 An exception to this principle must be made where the hindrance is due to some action of the promisor which under the terms of the contract or the customs of business he was permitted to take. Thus if a party seeking to secure all the merchandise of a certain character which he could, entered into a contract for a quantity of the required goods, and subsequently made performance of the contract by the seller more difficult by making other purchases which increased the scarcity of the available supply, his conduct would furnish no excuse for refusal to perform the prior contract.1

14

Not infrequently a promise is subject to more than one condition. Sometimes such conditions can be performed in any order, but sometimes one condition in the nature of things

plea was held bad on the ground that "such a bare surmise was not any bar."

In Blandford v. Andrews, Cro. Eliz. 694, to debt on an obligation conditioned, that the defendant should procure a marriage between the plaintiff and one Bridget Palmer, the defendant pleaded that the plaintiff come to the said Bridget Palmer, called her opprobrious epithets and told her that if he married her he would tie her to a post. On demurrer the court held that "the defendant ought to show that there was not any default in him; and that he did as much as in him lay to procure it; otherwise he does not save his obligation; and these words spoken before the day, at one time only, are not

such an impediment but that the marriage might have taken effect."

11 Gay v. Blanchard, 32 La. Ann. 497, quoted with approval in Patterson v. Meyerhofer, 204 N. Y. 96, 97 N. E. 472. See also United States v. Peck, 102 U. S. 64, 26 L. Ed. 46; Kress House Moving Co. v. George Hogg Co. (Pa.), 106 Atl. 351.

12 See infra, §§ 1293, 1318.

13 Ibid.; and see Pneumatic Signal Co. v. Texas, etc., R. Co., 200 N. Y. 125, 93 N. E. 471.

14 Even total prevention by the promisor may be contemplated as a contingency of which the promisee takes the chance, but such a case will be very rare.

cannot be performed until another has also been performed. Where a promise is made to pay a sum of money if the promisee constructs a building and if he also secures an architect's certificate, stating that the building has been properly constructed, it is impossible to perform the second condition until the first has been performed. In this case both the conditions were to be performed by the promisee. Sometimes, however, the promisor himself is to perform a condition, and until he performs it, it is impossible for the promisee to perform the condition which he must perform in order to be entitled to the promised performance.

Thus under an insurance policy which makes arbitration of the loss a condition precedent to recovery, and also provides that one of the arbitrators must be named by the insurer, his failure to name an arbitrator will prevent the performance of the condition of arbitration. Such prevention excuses nonperformance of the condition.15

So the performance of a condition by the promisee may be impossible without notice of some fact from the promisor. A failure to give such notice is a prevention of performance. 16

15 In Brock v. Dwelling House Ins. Co., 102 Mich. 583, 61 N. W. 67, 47 Am. St. Rep. 562, a condition of arbitration was held excused by the unreasonable action of an appraiser appointed by the insurance company. The court say, at page 593, "It is well settled that where the conduct of the company's appraiser in refusing to agree on an umpire is inexcusable, and virtually amounts to a refusal to proceed with the appraisement, the fact that the appraisement was not concluded before suit brought will not bar an action on the policy. McCullough v. Insurance Co., 113 Mo. 606, 21 S. W. 207; Bishop v. Insurance Co., 130 N. Y. 488, 29 N. E. 844; Uhrig v. Insurance Co., 101 id. 362, 4 N. E. 745; Bradshaw v. Insurance Co., 137 id. 137, 32 N. E. 1055."

16 In Spooner v. Baxter, 16 Pick. 409, the defendant had agreed to build a vessel and deliver it at Falmouth or

Boston at the option of the plaintiff. The plaintiff was unable to prove any notice of election at which port he would take the vessel, but the court held that this condition which qualified the defendant's liability was not performable until the defendant himself had given notice that the vessel was completed. For this reason the plaintiff recovered.

Cf. Coombe v. Greene, 11 M. & W. 480. The defendant there had agreed to expend on certain premises £100 "under the direction or with the approbation of some competent surveyor to be named by the plaintiff." The plaintiff alleged that the defendnat had not laid out this sum, though he, the plaintiff, was always ready to appoint a competent surveyor of which the defendant had notice. On demurrer judgment was given for the defendant on the ground that the actual appointment of the surveyor was a condition prece