Sec 579

It may be, that by conditions of sale, express or implied, the delivery of the goods is to precede the payment of the price. If so, delivery is a condition precedent to the purchaser's liability on the contract, and no action can be maintained for the price before delivery.1 Thus, where by the terms of sale fifty tons of iron were to be delivered "forthwith," while the price was to be paid within fourteen days, it was held that the delivery of the iron was a condition precedent to the paying of the price.2 And where, by the terms of the contract, a condition must be complied with by one party before there can be performance by the other party, this condition is a condition precedent.3 - The practice in case of rescission is hereafter considered.4 - When delivery is divisible, performance may be partial, and there may be a pro tanto recovery.5 It is otherwise when a delivery as an aggregate is contracted for.6 Whether completion is a condition precedent depends on the construction of the contract.7 In a case before the supreme court of the United States in 1880, it appeared that C. had contracted with the government for the removal of a rock in a particular harbor, the work to be finished at a specified time; and if he should be unable or unwilling to complete the work after beginning, the officer in charge was to terminate the engagement, and employ others to finish the work, deducting expenses from any money due C, who was to be responsible, for damages caused to others by his delay or laches. As the several sections of the work were in turn completed, he was to be paid pro tanto, reserving ten per cent. until the completion and acceptance of the whole work. The work was not completed within the specified limit, owing to the failure of a third party to deliver to C. the explosive compound requisite for the work. The officer in charge terminated the engagement, and there was no evidence to show that his action in this respect was wrongful. The work was completed by other parties at a less price. It was held that C. was entitled to recover the reserved ten per cent., but not the profits he would have made had he completed the work, nor the difference between the contract price and the price at which the work was done by others.1

When payment is conditioned on delivery or completion this is a condition precedent.

1 Ripley v. Maclure, 4 Ex. 345. See Smoot's case, 15 Wall. 37; Bean v. At-water, 4 Conn. 9; Morris v. Sliter, 1 Denio, 59. See infra, sec 898 et seq.

2 Staunton v. Wood, 16 Q. B. 638.

3 Mill Dam Foundry v. Hovey, 21 Pick. 439; Knight v. Worsted Co., 2.

Cush. 286. See Cooper v. Altimus, 62 Penn. St. 486.

4 Infra, sec 919.

5 Infra, sec 899.

6 Infra, sec 900.

7 Supra, sec 554 et seq.; infra, sec 900.

Sec 580

Suppose goods are to be sold and delivered by instalments at fixed periods; does default by the purchaser in accepting and settling for an instalment relieve the vendor from forwarding subsequent instalments?2 and does default on the part of the vendor in sending the first instalment relieve the purchaser from his obligation in taking the other instalments? The last question was the first decided in England in the exchequer chamber, it being held that default in delivery of an early instalment entitled the purchaser to refuse subsequent instalments.3 "The only question," said Pollock, C. B.," is whether, if a man who is bound to perform his part of a contract does not do so, he can enforce the contract against another party."4 In a subsequent case5 in the queen's bench, it was held that default in accepting an instalment, when goods are sold to be delivered in successive instalments, does not discharge from the delivery of future instalments, but is ground only for a suit for damages. In 1881 the question came up before the court of appeal on the following facts:6 The plaintiff contracted with the defendant for the purchase of 2000 tons of iron at 42s. per ton, free on board; delivery November, 1879, or equally over November, December, and January, at 6c?. per ton extra. During November the defendant wrote to the plaintiff and his broker asking whether he would take the whole or one-third in November. The plaintiff's broker replied, first that the plaintiff had not decided, and afterwards, that the plaintiff would be obliged if none were delivered till December. The defendant then wrote (on the 1st Dec.) to plaintiff saying that the contract was cancelled. The action was for non-delivery of 666 2/3 tons of iron in Dec. 1879, and of 666 2/3 tons of iron in January, 1880. It was held by Bramwell, L. J., and Baggallay, L. J. (Brett, L. J., dissen-tiente, and reversing the judgment of Field, J., and Manisty, J., in the court below), that the refusal of the plaintiff to accept any portion of the iron in November entitled the defendant to rescind the entire contract.1 - According to the judgment Successive instalments conditioned on discharge of duty as to first.

1 Quinn v. U. S., 99 U. S. 30.

2 See supra, sec 330, as to partial impossibility, and infra, sec 605, 716, 899.

3 Hoare v. Rennie, 5 H. & N. 19.

4 See also remarks of Martin, B., iu Bradford v. 'Williams, L. R. 7 Ex. 259.

5 Simpson v. Crippin, L. R. 8 Q. B. 14; see Roper v. Johnson, L. R. 8 C. P. 167.

6 Honck v. Miller, L. R. 7Q. B. D. 92, 45 L. T. N. S. 202.

1 Bramwell, L. J., said: "The case of Hoare v. Rennie, 5 H. & N. 19. is in point. The same thing was decided a few days ago in Engelhart v. Bosanquet (not reported). It was there held that on a sale of 2000 tons of sugar, to come in two ships, when the first ship was not equal to contract, the buyer was not hound to take the other. But it is said that Hoare v. Rennie has been overruled by Simpson v. Crippin, ubi supra. That is not so. That decision was quite right. The case was distinguishable from Hoare v. Rennie, for the contract had been part performed, and could not, therefore, be undone. One may express a respectful agreement with what the learned judges said in Simpson v. Crippin, viz., that they did not understand Hoare v. Rennie. The other cases cited are distinguishable on the same ground. It has never yet been held that a man may break his contract, render the performance of the whole impossible, and though nothing has been done under it, insist on performance of the remainder. Pordage v. Cole, 1 Wm. Saund. 548, has absolutely nothing to do with the case. That was an action on a specialty. This is not. As to the argument that in a case like the present there are really three contracts for three parcels, that is wholly erroneous. In parcel contracts the whole of what is to be done on one side is the consideration for the whole of what is to be done on the other.".