depends on the execution by the promisee of a condition precedent or prior act, it is clear that the readiness and offer of the latter to fulfil the condition, and the discharge or hindrance of its performance by the promiser, are, in law, equivalent to the completion of the condition precedent, and will render the promiser liable upon his contract (y).

In the case of a concurrent consideration, that is, where the acts to be done by each party are to occur at the same period, neither party can sue on the contract without showing a performance of, or an offer, or at least a readiness, to perform his part of the agreement, or a wrongful discharge or prevention of such performance by the other party; as in the case of a promise to deliver a horse on being paid the price thereof (z).

In the case of independent mutual contracts or promises, each party has his remedy on the covenant or promise in his favour, without performing his part of the contract (a).

In all cases the promiser will be discharged from liability, if the promisee do any act which render it impossible for the former to perform his engagement. As, if the time or mode of performance is to depend upon the notice or appointment of the covenantee (b); or, his personal attendance be essential, and yet he absent himself (c); or, if the undertaking be that I shall marry a certain woman by a named day, and before that time the promisee himself marry her (d): in all these cases, no liability on the promise arises. And where the promisee is bound by law to do a certain act before the performance of the contract is lawful, (as to procure a licence, &c. for his theatre, at which the defendant promised to dance, &c.) no action can be maintained for the breach of the engagement, until the act required to be done has been rendered lawful (e). Where a contract is made by a coachmaker to furnish a carriage, and keep it in repair, &c. for a certain term (this being a personal contract); if the coachmaker transfer or sell his business and interest in the contract to another person, the party who hired the carriage may treat the agree

(y) Hotham v. East India Company, 1 T. R. 638 note a; Smith v. Wilson, 8 East, 443; Alcorn v. Westbrook, 1 Wils. 115.

(z) See supra, note (u); Rawson v. Johnson, 1 East, 203. See Spiller v. Westlake, 2 B. & Ad. 155, action upon a note for part of the purchase money of an estate not conveyed.

(a) Supra, note (u); French v. Tre

win, 1 Ld. Raym. 124; Thomas v. Cadwallader, Willes R. 499.

(b) Studholme v. Mandell, 1 I.d. Raym. 279; Lutw. 213, fol. ed. S. C.; Gallini v. Laborie, 5 T. R. 242.

(c) Rol. Ab., Condition, N. pl. 2. (d) Co. Lit. 206; Bridges v. Bedingfield, 2 Mod. R. 28.

(e) Gallini v. Laborie, 5 T. R. 242; De Begnis v. Armistead, 10 Bing. 107.

ment as at an end, on the ground that the coachmaker had become incapable of performing his part of it (ƒ). And we have seen that a book publisher discharges an author from liability to provide articles agreed to be inserted in a particular publication, by altering the nature of the work in which the articles were to appear, or requiring that the articles should be published separately, contrary to the spirit of the contract, and to the probable injury of the author's reputation (g).

If a party, entitled under a contract to receive a profit from another, by his own acts, so confound the measure of that which he was to receive that it can no longer be ascertained, he vacates his whole claim. A. agreed to find sufficient coal for B.'s engine, to draw water from A.'s mine, and B.'s little coal mine, as they then stood. B. sunk to a lower seam; in draining which, he drained the other two seams, but consumed for his engine more coals than before. It was held, that A. was no longer bound to furnish any coal, because B. had destroyed the measure of sufficiency (h).

It seems, however, that the performance of a condition precedent on which a duty attaches, is not excused, where the prevention arises from a mere stranger: as, where by the proposals of the Phoenix Company it was stipulated that persons insured should give notice of the loss forthwith, deliver in an account, and procure a certificate of the minister, church wardens, and some reputable householders of the parish, importing that they knew the character, &c., of the assured, and believe that he really and boná fide sustained the loss; it was decided that, although the minister, &c., without any reason, refused to sign the certificate, the assured could not recover without it (i). So, if a man covenant that his son shall marry the covenantee's daughter, a refusal by her will not discharge the covenantor from making pecuniary satisfaction (). And if A. covenant with C. to enfeoff B., (a third person), A. is not released from his covenant by B.'s refusal to accept livery of seisin (1).

(f) Robson v. Drummond, 2 B. & Ad. 303.

(g) Planche v. Colburn, 5 C. & P. 58; 8 Bing. 14, S. C., ante, 448.

(h) Pringle v. Taylor, 2 Taunt. 150. (i) Worsley v. Wood, 6 T. R. 710. Covenant in a charter-party to pay the value of reshipping in case of capture, &c. provided it should appear to a court-martial that the captain had made the best defence. The holding

a court-martial is indispensable as a condition precedent; Davison v. Moore, 3 Doug. 28. In the case of an agreement to pay for repairs on an architect certifying they are done, &c., such certificate is essential; Morgan v. Birnie, 3 M. & Scot. 76; 9 Bing. 672, S. C. (k) Perkins, sect. 756.

(1) Cook v. Jennings, 7 T. R. 384; sce M'Neill v. Reid, 9 Bing. 68; 3 Moor. & S. 89,S. C., ante, 187.

Where the purchaser of a new house agreed to pay a certain sum, in addition to the purchase money, provided by a named day the pavement in front of the adjoining houses should be laid down; it was held, that the completion of the pavement by the specified time was a condition precedent; and that no right to the money accrued, as the pavement was not then finished, although the delay was only for four days, and was occasioned by the badness of the weather (m).

6. Of rescinding a Contract on non-performance by the other Party.

The right to abandon, or rescind a contract in toto, has been already partially considered (). It may, however, be useful to notice a few of the leading rules on this subject.

In general, the non-performance of a condition precedent entitles the defendant to consider himself freed altogether from liability to do the act which he was to perform when the condition precedent was executed (o). But if the defendant's agreement be continuous, and his liability is to accrue at intervals upon distinct acts of the plaintiff being performed, the non-completion of the plaintiff's part of the agreement in one instance, shall not discharge the defendant from liability on a subsequent occasion upon which the plaintiff is not in default. As, if a brewer agree to supply good porter to an innkeeper, and the latter agree to purchase the same, although the innkeeper be not bound to take bad porter tendered to him upon one occasion, he is liable to receive good porter subsequently offered (p).

The right to abandon a contract vests only in the party who has been guilty of no default; and by him it must be exercised within a reasonable time (q).

(m) Maryon v. Carter, 4 C. & P. 295. The declaration averred the performance of the condition precedent, not an excuse for the delay; but the case seems to be an authority to the above effect. At all events it is sustainable on the principle that the party had expressly made it a condition precedent without restriction that the pavement should be finished by a particular day, see ante, 572.

(n) See ante, 351, 362 to 369, 570, 571, 572. Instance of an agreement to rescind, James v. Cotton, 7 Bing. 266;

5 M. & P. 26, S. C. Bankruptcy does not in general rescind a contract; Boorman v. Nash, 9 B. & C. 145.

(0) Supra, note (n). See Mawman v. Gillett, 2 Taunt. 325, n.; post 574.

(p)Weaver v. Sessions, 6 Taunt. 155. (q) Towers v. Barrett, 1 T. R. 136; Hinde v. Whitehouse, 7 East, 571; Hodgson v. Davies, 2 Camp. 530; Okell v. Smith, 1 Stark. R. 108, 140, 477; Prosser v. Hooper, 1 Moore, 106; Mawman v. Gillett, 2 Taunt. 325, note.

Where the party who was to perform the condition precedent by a certain time, disables himself before that time from performing it, we have seen that the other party may immediately abandon the contract (r).

A printer agreed to do certain work within six months, and to insure from fire his employer's (the plaintiff's) materials. The court held, that this did not bind the employer to furnish the materials within six months; and, that although, by extending the time, the risk was prolonged, the defendant continued liable for loss by fire; unless, on account of the delay, he absolutely abandoned the contract; and that his remonstrating against such delay was not sufficient to obviate his liability with regard to fire, as he still continued to print the work (s).

The general rule is, that a contract cannot be rescinded by one party so as to enable him to recover back money paid by him thereon, as money had and received to his use, unless the other party concur in treating the agreement as abandoned ab initio ; or unless it were part of the original bargain, that in a certain event the power of rescinding, and right to recover back such money, should be vested in one of the parties (t).

There are some instances in which, although an agreement of a continuing nature has been in part performed, the further performance of it may be excused, or discharged by conduct of the other party wholly at variance with the spirit of the contract (u). These are not cases strictly within the law relative to the total abandonment or rescinding of the contract ab initio, when a right to recover back money paid as the consideration, may arise.

A contract cannot, in general, be rescinded in toto by one of the parties, where both of them cannot be placed in the identical situation which they occupied, and cannot stand upon the same terms as those which existed, when the contract was made (x). The most obvious instance of this rule is, where one party, by having had possession, &c., has received a partial benefit from the contract (y). It would be unjust to destroy a contract in toto, where one party has derived some advantage by the other party having to some extent performed the agreement in such case,

(r) Ante, 565.

(s) Mawman v. Gillett, cited 2 Taunt. 325, note a.

(t) Ante, 365,489.

(u) As in the case of the author,

ante, 448: see, however, ante, 573.

(x) Hunt v. Silk, 5 East, 449; Beed v. Blandford, 2 Y. & J. 278; ante, 487 to 491.

(y) Id. ante, 361, 488.

the agreement shall stand; the defendant must perform his part thereof, and must seek in a cross action a compensation, in damages, for the plaintiff's default. Of late, however, the courts, to prevent unnecessary litigation, have, in many instances, allowed a defendant, in case of a partial failure of consideration, [except where the action is on a bill of exchange, and a question of unliquidated damages would be raised by inquiring into the consideration for such bill (z)], instead of bringing a cross action, to reduce the damages by setting up such partial failure of consideration. This relaxation of the rule generally applies in the case of a contract for goods, or work and labour and materials; in which the defendant, when sued for the price, may show the insufficiency of the goods, or incomplete performance of the work, &c., although a specific sum were agreed upon (a).

A contract for freight cannot, it seems, be rescinded, if the consignee has received the goods, and has therefore derived some benefit from the carriage, although the goods were damaged by the negligence of the carrier beyond the amount of the freight (b). And we have seen, that if a vendee receive, and keep after the time for completing the contract, one of several articles, bought together under one contract, he must pay for such article, although he might have refused to take it; for such retention of a part of the goods sold disaffirms the entirety of the contract (c).

2ndly. PAYMENT (d).

1. Payment--to whom made.

2. Of the Amount paid.

3. When presumed, and how made.

4. Of the Appropriation of a Payment where there are distinct Accounts.

5. Of a Receipt for the Money.

1. Payment; to whom made.—If one of several plaintiffs, or a nominal plaintiff suing for another person beneficially interested, fraudulently, and by collusion with the defendant, give him

(z) Moggeridge v. Jones, 14 East, 486; Spiller v. Westlake, 2 B. & Ad. 155; post, division 4.

(a) Ante, 363, 451; Havelock v. Geddes, 10 East, 564; Wilbeam v. Ashton, 1 Camp.78; Bragg v. Cole, 6 Moor, 114; Pordage v. Cole, 1 Saund. 320 b, note. In the case of builders,

ante, 451; of attorneys, ante, 443 to 446, agents, ante, 434; apothecaries, ante, 439; authors, ante, 448; surveyors, ante, 462

(b) Shields v. Davis, 6 Taunt. 65. (c) Ante, 352, 353.

(d) This must now be pleaded specially, even in assumpsit.