construction. Unless the contract expressly so provides no part of the price is due until the completion of the work.5 § 831. When performance on one side requires an indefinite time. A contract sometimes provides for performance on 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. "Jones v. Somerville, 1 Port. 437; Ward v. Textile Commission Co., 139 N. Y. App. D. 109, 123 N. Y. S. 918. "The decision of Judson v. Bowden, 1 Exch. 162, seems opposed to the text but is rightly criticised in Langdell, Summ. Con., § 129. "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 Gail, 127 N. Y. App. Div. in Gail v. 892, the plaintiff sued for payments under a contract by which she had agreed to transfer certain real estate § 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. 60 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. 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 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. |