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.75

§ 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

73 Heller v. McGuin, 261 Ill. 588, 104 N. E. 588; Maryland Construction Co. v. Kuper, 90 Md. 529, 45 Atl. 197. But see infra, § 879.

74 Bell v. Thompson, 34 Ala. 633; Hart v. McClellan, 41 Ala. 251; Martin v. Thompson, 141 Ga. 31, 80 S. E. 318; Bearden v. Wood, 1 A. K. Marsh. 450; Klyce v. Broyles, 37 Miss. 524; Deichmann v. Deichmann, 49 Mo. 107, 109. See also Burkhalter v. Roach, 142 Ga. 344, 82 S. E. 1059; Forthman v. Deters, 206 Ill. 159, 69 N. E. 97, 90 Am. St. Rep. 145; Sowle v. Holdridge, 63 Ind. 213; Tevis v. Tevis, 259 Mo. 19, 167 S. W. 1003, Ann. Cas. 1917 A. 865; Hall v. Whittier, 10 R. I. 530; Cummings v. Nielson, 42 Utah, 157, 129 Pac. 619.

75 In Hines v. Roller, 239 Fed. 486, 488, 152 C. C. A. 364, it was said, quoting from Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501: "A party does not forfeit his rights to the interposition of a court of equity to enforce a specific performance of a contract, if he seasonably and in good faith offers to comply, and continues ready

to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation.' Tavenner v. Barrett, 21 W. Va. 656; Vaught v. Cain, 31 W. Va. 424, 7 S. E. 9; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195. The principle is clearly stated and illustrated by Judge Brannon in Watson v. Coast, 35 W. Va. 463, 14 S. E. 249, and by Vice Chancellor, later Justice, Pitney, in Worch v. Woodruff, 61 N. J. Eq. 78, 47 Atl. 725."

76 Bank of Columbia v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Glenn v. Rossler, 156 N. Y. 161, 50 N. E. 785; Makepeace v. Dilltown Smokeless Coal Co., 179 N. Y. App. D. 60, 166 N. Y. S. 92. In Dunn v. Oneida Community, 177 Fed. 540, 546, the court said: "In the absence of anything to show a contrary intent on the part of the parties, a contract for the exchange of property must be performed on both sides concurrently.' Brennan v. Ford, 46 Cal. 7; Pead v. Trull, 173 Mass. 450, 53 N. E. 901," and see supra, § 40. 77 See supra, § 40, infra, § 955.

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,80 but he can bring suit without presentment, that is, without offering to perform on his part by surrendering or even producing the instrument. 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

81

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. C. 563, 162 N. Y. S. 317; Bank of Rutland v. Woodruff, 34 Vt. 89. See also Wagner v. Kohn, 225 Fed. 718, 721, 140 C. C. A. 592.

that event or in case of conversion only a defence pro tanto.84 This is because the creditor's claim does not have for its consideration the performance of the act on his part which is contemporaneous with payment, but is based on the consideration of a prior loan or credit given by the creditor.85 There are other prerequisites for the implication of concurrent conditions. If the contract expressly or by implication requires the performance on one side to be at a different place from performance on the other side, there can obviously be no concurrent conditions. So, if by the terms of the contract the performances are to take place at different times there are no concurrent conditions originally, though such conditions may afterwards arise.86 Therefore if either performance is incapable of performance at a single instant of time,” mutual promises cannot be concurrently conditional. But where the time for performance on one side is fixed and the contract does not state when performance on the other side is to take place, it will be inferred unless the nature of the contract or the surrounding circumstances make a contrary inference imperative that that performance was to be rendered at the same time, and concurrent conditions will be implied.&

84 Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, 15 Pac. 773, 5 Am. St. Rep. 435; Harrell v. Citizens' Banking Co., 111 Ga. 848, 36 S. E. 460; Hathaway v. Fall River Nat. Bank, 131 Mass. 14; Griswold v. Jackson, 4 Hill, 522; Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; Hyams v. Bamberger, 10 Utah, 3, 36 Pac. 202, 205.

The case should be distinguished where the creditor is an assignee of a seller, and holds as security the title to the goods or a document representing them. Here the buyer is under no obligation to pay unless he gets title. This was lost sight of in First Nat. Bank v. Gidden, 175 N. Y. App. D. 563, 162 N. Y. S. 317. See 30 Harv. L. Rev. 514.

85 For the same reason where one who had contracted to sell an automobile body, lent to the buyer for temporary

use an inferior body, it was held not a condition of the buyer's right to sue for failure to deliver the agreed body that he should tender to the seller the inferior body. Watkin v. Interborough Transfer Co., (N. Y. Supr. Ct.) 174 N. Y. S. 152.

86 See infra, §§ 886, 887.

87 Even where both parties agree to work simultaneously, it is impossible to make strict concurrent conditions. One cannot make a conditional tender of a week's work either at the beginning or at the end of the week.

88 Morton v. Lamb, 7 T. R. 125; Withers v. Reynolds, 2 B. & Ad. 882; Long v. Addix, 184 Ala. 236, 63 So. 982; Brennan v. Ford, 46 Cal. 7, 16; Baker v. McDonald, 74 Neb. 595, 104 N. W. 923, 1 L. R. A. (N. S.) 474; Rushton v. Campbell, 94 Neb. 141, 142 N. W. 902; Skillman Hardware Co. v. Davis, 53 N. J. L. 144, 20 Atl. 1080; Traver

So if no time is fixed for the performance of either party their performances are concurrently conditional if their nature admits of concurrent performance. The principle is applicable to the several parts of a divisible contract, so that unless otherwise provided, or the nature of the case makes it impossible, there will be concurrent conditions in each part.90 It has been held by the Supreme Court of the United States o1 that where one performance was stated in the contract to be due "after" performance of the covenants on the other side, that there were no concurrent conditions, but a condition precedent which must be performed, or an absolute and unconditional tender made, before a right of action would arise. Though this is in accordance with the literal meaning of the language of the contract, it may be questioned whether even here the court might not have implied concurrent conditions, since the liability on one side would arise in an infinitesimal moment of time after the performance on the other side."

v. Halsted, 23 Wend. 66; Dunham v. Pettee, 8 N. Y. 508; Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080; McCammon v. Kaiser, 218 N. Y. 46, 112 N. E. 572; Catlin v. Jones, 48 Or. 158, 85 Pac. 515, 52 Or. 337, 97 Pac. 546; Pickett v. Cloud, 1 Bail. 362; Burlington Paper Stock Co. v. Diamond, 88 Vt. 160, 92 Atl. 19. See also Rawson v. Johnson, 1 East, 203; Eng. Sales of Goods Act, Sec 28; Uniform Sales Act, Sec. 42.

89 Bloxam v. Sanders, 4 B. & C. 941; Lehman v. Warren, 53 Ala. 535, 540; Louisville Packing Co. v. Crain, 141 Ky. 379, 132 S. W. 575; Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712; Haskins v. Warren, 115 Mass. 514, 533; H. C. Miner Lithographing Co. v. Mittenthal Co., 119 N. Y. S. 1066; Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53.

90 Richardson Press v. Vandergrift, 165 N. Y. App. Div. 180, 150 N. Y. S. 238.

91 Loud v. Pomona Land & Water Co., 153 U. S. 564, 38 L. Ed. 822, 14 Sup. Ct. 928. See also Eastern Oregon

Land Co. v. Moody, 198 Fed. 7, 119
C. C. A. 135.

92 In Beecher v. Conradt, 13 N. Y. 108, the plaintiff promised to make a conveyance "upon the express condition that" the defendant "shall and do well and faithfully perform the covenants" by him made. It was held that the performance by the plaintiff was due concurrently with the final performance of the defendant, and that the plaintiff could not insist upon full precedent performance by the defendant of all his covenants before the plaintiff himself became liable.

In Michigan Home Colony Co. v. Tabor, 141 Fed. 332, 72 C. C. A. 480, where a written contract for the sale of land recited the payment of a sum down by the purchaser and required him to pay the remainder of the purchase money on a specified date, and further provided that on such payment being made the vendor should on demand thereafter" cause to be executed to the purchaser "a good and sufficient deed in fee simple of the premises above described, free and