It is sometimes of great importance to determine whether there be a condition in a contract or an instrument. If, for breach of it, have an election to refuse to receive what has been done, and thus discharge himself from payment But we think this difference in the nature of the contracts does not justify the application of a different rule in relation to them. The party who contracts for labor merely for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the performance, and with knowledge, also, that the other party may eventually fail of completing the entire term, if under such circumstances he actually receives a benefit from the labor performed, over and above the damage occasioned by the failure to complete, there is as much reason why he should pay the reasonable worth of what has thus been done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according to the stipulations of the contract, and which he perhaps enters, not because he is satisfied with what has been done, but because circumstances compel him to accept it such as it is, that he should pay for the value of the house. ... If the party who has contracted to receive merchandise takes a part and uses it, in expectation that the whole will be delivered, which is never done, there seems to be no greater reason that he should pay for what he has received, than there is that the party who has received labor in part, under similar circumstances, should pay the value of what has been done for his benefit. It is said, that in those cases where the plaintiff has been permitted to recover, there was an acceptance of what had been done. The answer is, that where the contract is to labor from day to day for a certain period, the party for whom the labor is done in truth stipulates to receive it from day to day, as it is performed, and although the other may not eventually do all he has contracted to do, there has been, necessarily, an acceptance of what has been done in pursuance of the contract, and the party must have understood when he made the contract that there was to be such acceptance. If, then, the party stipulates in the outset to receive part performance from time to time, with a knowledge that the whole may not be completed, we see no reason why he should not equally be holden to pay for the amount of value received, as where he afterwards takes the benefit of what has been done, with a knowledge that the whole which was contracted for has not been performed. In neither case has the contract been performed. In neither can an action be sustained on the original contract. In both the party has assented to receive what is done. The only difference is, that in the one case the assent is prior, with a knowledge that all may not be performed, in the other it is subsequent, with a knowledge that the whole has not been accomplished. We have no hesitation in holding that the same rule should be applied to both classes of cases, especially as the operation of the rule will be to make the party who has failed to fulfil his contract, liable to such amount of damages as the other party has sustained, instead of subjecting him to an entire loss for a partial failure, and thus making the amount received in many cases wholly disproportionate to the injury. . . . We hold, then, that where a party undertakes to pay upon a special contract for the performance of labor, or the furnishing of materials, he is not to be charged upon such special agreement until the money is earned according to the terms of it, and where the parties have made an express contract, the law will not imply and raise a contract different from that which the parties have entered into, except upon some further transaction between the parties. But if, where a contract is made of such a character, a party actually receives labor or materials, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach be collected from the whole contract." (l) It is said that where the clause in question goes to the whole of the consideration, it shall be read as a condition. (m) The meaning of this must be, that if the supposed condition covers the whole ground of the contract, and cannot be severed from it, or from any part of it, a breach of the condition is a breach of the whole contract, which gives to the other party the right of avoiding or rescinding it altogether. But where the supposed condition is distinctly separable, so that much of the contract may be performed on both sides as though the condition were not there, it will be read as a stipulation, the breach of which only gives an action to the injured party. (n) But it is uot safe to assert, that which is sometimes said to be law, (o) that where in case of a breach the party cannot have his action for damages, there the doubtful clause must be read as a condition, because otherwise the party injured would be without remedy. For if "the reason and sense of the thing," or the rational and fair construction of the contract, leads to the conclusion that the parties did not agree nor intend that there should be this condition, then there is none; and if a party be in this way injured and remediless, it is his own fault, in that he neither inserted in his contract a condition, the breach of which would discharge him from all obligation, nor a stipulation, for the breach of which he might have his action. (p) So is he remediless if he cannot procure the performance of a condition of which he permitted the insertion. Thus it is held that if money is to be paid by insurers, or by others, when a certain certificate is presented, the money is not payable in the absence of the certificate, although it be unreasonably withheld. (pp)

* instance, a deed contain a grant on condition, then, if there be a breach of condition, the grant is void, and the estate may never vest, or may be forfeited. A condition of this sort is not favored, and would not be readily implied. (j) But stipulations or agreements may be implied, upon the breach of which an action may be brought. Mutual contracts sometimes contain a condition, the breach of which by one party permits the other to throw the contract up, and consider it as altogether null. Whether a provision shall have this effect, for which purpose it must be construed as an absolute condition, is sometimes a question of extreme difficulty. It is quite certain, however, that no precise words are now requisite to constitute a condition; and perhaps that no formal words will constitute a condition, if it be obvious from the whole instrument, that this was not the intention or understanding of the parties.

•It would be difficult, and perhaps impossible, to lay down rules which would have decisive influence in determining this vexed question. Indeed, courts seem to agree of late that the decision must always "depend upon the intention of the parties, to be collected in each particular case from the terms of the agreement itself, and from the subject-matter to which it relates." (k) "It cannot depend on any formal arrangement of the words, but on the reason and sense of the thing as it is to of the contract by the other party, the labor actually done, and the value re ceived, furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case, one not within the original agreement, and the party is entitled to recover on his new case for the work done, not as agreed, but yet accepted by the defendant.' 1 Dane's Abr. 224." But the courts of other States have thus far shown little disposition to adopt the views of the learned judge. Thus, in Eldridge v. Rowe, 2 Gilman, 91, the court held, upon a similar state of facts, that the plaintiff was not entitled to recover. And Young, J., said: "It is no objection to say that the defendant has received the benefit of his labor, this being a case, where, from its nature, the defendant could not separate the products of his labor from the general concerns of his farm, and ought not, therefore, to be responsible to any extent whatever for not doing that which was impossible." See also Miller v. Goddard, 84 Me. 102; Olmstead v. Beale, 19 Pick. 629; Davis v. Maxwell, 12 Met. 286; Swanzey v. Moore, 22 Ill. 63. Hansell v. Erickson, 28 Ill 257, in which case it is also held, that a contract to work a given number of months at a fixed price per month, is an entire contract, extending over the whole number of months. See also, ante, p. *36, note (q), and p. *40, note (f). - Difficult questions frequently arise in the classes of cases considered in the present note, as to the measure of damages, and the right of the defendant to have deducted from the amount otherwise recoverable the damage sustained by him in consequence of the breach of the contract. These questions will be considered under their appropriate heads in the subsequent part of this treatise.

(j) See ante, p. *510, n. (y).

(k) Per Tindal, C. J., in Glaholm v. Hays, 2 Man. & G. 266.

(l) Per Lord Ellenborough, in Ritchie v. Atkinson, 10 East, 206. And Northampton Gas Light Co. v. Parnell, 16 C. B. 630, 29 Eng. L. 6 Eq. 281.

(m) Boone v. Eyre, 1 H. Bl. 278, note (a).

(n) See Hemans v. Picciotto, 1 C. B. (N. S.) 046.

(o) See Pordage v. Cole, 1 Wms. Saund. 819.

(p) See infra, p. *629, note (r).

(pp) Coles v. Turner, L. R. 1 C. P. 878; Mills v. Bayley, S2 L. J. Ex. 179; 8cott v. Corporation of Liverpool, 28 L. J. C. 280.