inary re § 560. THE rules of law on the subject of conditions in contracts are very subtle and perplexing. Whether a prom- Prelimise made or an obligation assumed by one party to a marks. contract is dependent on, or independent of, the promise made by the other; whether it be a condition to be performed before or concurrently with any demand on the other party for a compliance with his promise; or whether it may be neglected, at the peril indeed of a cross action, but without affecting the right to sue the other party, are questions on which the decisions have been so numerous (and in many instances so contradictory), and the distinctions so refined, that no attempt can here be made to do more than enunciate a few general principles. An examination of the cases will be restricted to such as have special reference to sales of goods. (a) sep General and defi § 561. The subjects of representation, warranty, conditions, and fraud run so closely together, and are so frequently intertwined, (a1) that it is very difficult to treat each principles arately; and it will be convenient here, although these nitions. different topics need independent consideration, to give an outline of the general principles applicable to the whole subject as recognized in the most recent decisions. A representation Represenis a statement or assertion made by one party to the tation. other, before or at the time of the contract, of some matter or circumstance relating to it. A representation, even though contained in a written instrument, is not an integral part of the contract. (a2) Hence it follows, that even if it be untrue, the contract in general is not broken, nor is the untruth any cause of action, unless made fraudulently. To this general rule there is a special exception, in the case of marine policies of insurance, founded on reasons which need not be here discussed. (b) The false representation becomes a fraud, as has been already explained (book III. ch. ii,), when the untrue statement was made with a knowledge of its untruth, or dishonestly, or with reckless ignorance whether it was true or false; (c) or when it differs from the truth (a) For the general subject, see the notes to Pordage v. Cole, 1 Wms. Saund. 320, and to Peeters v. Opie, 2 Wms. Saunders, 352; Cutter v. Powell, 2 Smith's L. C. 1, and the numerous authorities in the notes; Leake on Contracts, ch. 3, s. 2. (a1) [Larey v. Taliaferro, 57 Ga. 443.] (a2) [Wilson Sewing Machine Co. v. Sloan, 50 Iowa, 367.] (b) [See 2 Chitty Contr. (11th Am. ed.) 1045, 1046, and note (q).] (c) Elliott v. Von Glehn, 13 Q. B. 632; 18 L. J. Q B. 221; Wheelton v. Hardisty, so grossly and unreasonably as to evince a dishonest purpose. (d) When the representation is made in writing, instead of words, it is plain that its nature is not thereby altered, and in either case a question may arise whether the statement be not something more than a mere representation, whether it be not part of the contract. On a written instrument this is a question of construction, one of law for the court, not one of fact for the jury. Whenever it is determined that a statement is really a substantial part of the contract, then comes the nice and difficult question, Is it a condition precedent? or is it an independent agreement? a breach of which will not justify a repudiation of the contract, but only a cross action for damages. The cases show distinctions of extreme nicety on this point, of which a striking example is afforded in charter-parties, where a statement that a vessel is to sail or to be ready to receive cargo on a given day has been decided to be a condition, (e) but a stipulation that she shall sail with all convenient speed, or within a reasonable time, is held to be an independent agreement. (f) In determining whether a representation or statement is a condition or not, the rule laid down by Lord Mansfield in Jones v. Barkley (g) remains unchanged, "that the dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and that however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance. (h) And the rules for discovering the intention are mainly these : 8 E. & B. 232; 27 L. J. Q. B. 241; Reese Silver Mining Co. v. Smith, L. R. 4 Eng. Ap. 64. (d) Barker v. Windle, 6 E. & B. 675; S. C. 25 L. J. Q. B. 349. (e) Glaholm v. Hays, 2 M. & G. 257; Oliver v. Fielden, 4 Ex. 135; Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J. Ex. 153; Seeger v. Duthie, 8 C. B. N. S. 45; 29 L. J. C. P. 253. (f) Tarrabochia v. Hickie, 1 H. & N. 183; 26 L. J. Ex. 26; Dimech v. Corlett, 12 Moore P. C. C. 199; Clipsham v. Vertue, 5 Q. B. 265; M'Andrew v. Chapple, L. R. 1 C. P. 643; 35 L. J. C. P. 281. (g) Doug. 684-691. (h) [The question, whether covenants covenants are dependent or independent, question of are dependent or independent, depends Rules of construccovering tion for dis intention. § 562. 1. Where a day is appointed for doing any act, and the day is to happen or may happen before the promise by the other party is to be performed, the latter may bring action before performance, which is not a condition precedent: aliter, if the day fixed is to happen after the performance, for then the performance is deemed a condition precedent. (i) 2. When a covenant or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition. (1) 3. Where the mutual promises go to the whole consideration on both sides, they are mutual conditions precedent: formerly called dependent conditions. (k) 4. Where each party is to do an act at the same Philip Mills v. Slater, 12 R. I. 82; Phelps v. Hubbard, 51 Vt. 489; Moore v. Waldo, 69 Mo. 277. "In construing a mutual agreement, in which there are several stipulations on both sides, the question, whether one is absolute and independent, or conditional, and made to depend on something first to be done on the other side, does not depend on any particular form of words, or upon any collocation of the different stipulations; but the whole instrument is to be taken together, and a careful consideration had of the various things to be done, to decide correctly the order in which they are to be done." "When, in the order of events, the act to be done by the one party must necessarily be done before the other can be done, it is necessarily a condition precedent, although there be a stipulation for liquidated damages for the breach on each side, and although there be a fixed future time for payment, sufficiently distant to have the work done in the mean time." Shaw C. J. in Cadwell v. Blake, 6 Gray, 407, 409. Some of the stipulations of an entire contract may be dependent and others independent, according to their nature and the order of performance. Shaw C. J. in Knight v. New England Worsted Co. 2 Cush. 287; Couch v. Ingersoll, 2 Pick. 292; Kane v. Hood, 13 Ib. 281. Where A. agrees to supply certain machines, according to a model to be furnished by B., the furnishing of the model is a condition precedent. Savage Manuf. Co. v. Armstrong, 19 Maine, 147; Shaw C. J. in Mill Dam Foundry v. Hovey, 21 Pick. 439. So where, by the terms of a contract, goods are to be delivered at a particular place, they must be delivered at that place before a recovery can be had for the price of them. Savage Manuf. Co. v. Armstrong, supra. Where one agrees to perform labor on articles to be furnished by another, the furnishing of the articles is a condition precedent to the performance of the labor. Clement v. Clement, 8 N. H. 210; Thomas v. Cadwallader, Willes, 496; Knight v. New England Worsted Co. 2 Cush. 286; Hill v. Hovey, 26 Vt. 109.] (i) [Eastman J. in Sumner v. Parker, 36 N. H. 454; Putnam v. Mellen, 34 Ib. 71, 79; Rice J. in Allard v. Belfast, 40 Maine, 376; Elliott v. Hewitt, 11 U. C. Q. B. 292; Murphy v. Scarth, 16 Ib. 48; Driscall v. Barker, 2 Pugsley & Burbridge (N. B.), 407; Sheeren v. Moses, 84 Ill. 448.] (i) [Tate v. The Port Hope &c. Railway Co. 17 U. C. Q. B. 354; Auchterlonie v. Aems, 25 U. C. C. P. 403.] (k) See Glazebrook v. Woodrow, 8 T. R. 366; [Shaw C. J. in Mill Dam Foundry v. Hovey, 21 Pick. 439; and in Knight v. New England Worsted Co. 2 Cush. 285-287; Hopkins v. Young. 11 Mass. 302; Tileston v. Newell, 13 Ib. 406; Dox v. Dey, 3 Wend. 356; Willington v. West Boylston. 4 Pick. 101, 103; Cole v. time as the other, as where goods in a sale for cash are to be delivered by the vendor, and the price to be paid by the buyer; these are concurrent conditions, and neither party can maintain an action for breach of contract, without averring that he performed or offered to perform what he himself was bound to do. (1) 5. Where from a consideration of the whole instrument it is clear that the one party relied upon his remedy, and not upon the performance of the condition by the other, such performance is not a condition precedent. But if the intention was to rely on the performance of the promise, and not on the remedy, the performance is a condition precedent. (m) § 563. In applying these rules of construction, the circumstances under which the contract was made, and the purpose for which it was made, are to be taken into consideration. The same statement may, under certain circumstances, be merely a description or representation, and under others, the most substantial stipulation in the contract; as, for instance, if a vessel were described in a charter-party as a "French vessel," these words would be merely a description in time of peace; but if England were at war, and France at peace, with America, they would form a condition precedent of the most vital importance. (n) § 564. Although a man may refuse to perform his promise till Conditions the other party has complied with a condition precedent, yet if he has received and accepted a substantial part of that which was to be performed in his favor, the condition precedent changes its character, and becomes a warranty or independent agreement, affording no defence to an action, but giving right to a cross action for dam precedent may be changed into warranty by acceptance of partial perform ance. Hester, 9 Ired. 23; Brown v. Cannon, 5 () [Baker v. Booth, Draper (U. C.), 65; Walsh v. Brown, 18 U. C. C. P. 60; Koster v. Holden, 16 Ib. 331; Clark v. Weis, 87 Ill. 438.] These rules are (in substance) given in 1 Wms. Saunders, 320 b; and adopted in the notes to Cutter v. Powell, 2 Sm. L. C. 1. The general statement of the law applicable to conditions in the preliminary remarks in this chapter is mainly based on the judgment of the exchequer chamber in Behn v. Burness, 3 B. & S. 751; 32 L. J. Q. B. 204; [Sweeny v. Godard, 4 Allen, (N. B.) 300.] (m) Per Jervis C. J. in Roberts v. Brett, 18 C. B. 561; 25 L. J. C. P. 280; and see the opinions of the lords in this case in 11 H. L. Cas. 337; [ante, § 561, and cases in note (h). "Where time is given for the performance on one side, and payments are to be made by the other within such time, it is certain that the making of the payments cannot depend upon a full and complete performance." Shaw C. J. in Lord v. Belknap, 1 Cush. 279, 284.] (n) Behn v. Burness, 3 B. & S. 751, per Williams J. [and note at the end]. |