67 under the direction of a surveyor carries with it a condition implied in fact that a surveyor be appointed. Similarly, if A agrees to manufacture goods in assorted sizes as ordered by the buyer, it is a condition implied in fact that the latter order the sizes wanted. Performance is excused until he does so.68 "Where circumstances left uncertain by the contract are of such a nature that one party cannot perform his part of the contract until they are fixed, the other party, insisting on the contract, ought to fix those particulars." "9 For all practical purposes, conditions implied in fact are to be treated in the same manner as express conditions. The analogy to these terms, express and implied in fact conditions, is to be found in the use of the terms, express contracts and contracts implied in fact. 69 160. Conditions implied in law.-A condition which is implied in law is one which is neither expressed nor intended by the parties so as to become even a condition implied in fact. Conditions implied in law are supplied by the courts in the interests of fair dealing and to meet the needs of justice,7° although a few authorities hold that the basis for their existence is the implied intention of the parties."1 Such conditions are in the nature of equitable defenses based upon non-performance by the party who breaks the condition. Undoubtedly, they result from the application of equitable principles, but since, his 67 Coombe v. Green, 11 M. & W. 480 (Eng.). 68 Ault v. Dustin, 100 Tenn. 366. 69 Coleridge, Jr., in Armitage v. Insole, 14 Q. B. 728 (Eng.). 70 Costigan, Performance of Contracts, pp. 7, 8. 71 Harriman, Contracts (2d ed.), §§ 315, 318. torically, they have been treated as conditions, it is difficult to depart from that method. Thus, express conditions and conditions implied in fact are true conditions. They apply to unilateral as well as bilateral contracts. Conditions implied by law apply only to bilateral contracts. 161. Performance of express and implied conditions. In the mode of performance, conditions expressed and implied in fact require strict performance. But a condition implied in law need only be performed substantially. Only a material breach of such a condition by one party to the contract will excuse performance by the other. Consequently, being more just, where doubt exists as to what a condition should be deemed, it is to be regarded as a condition implied in law rather than as one implied in fact.72 162. Precedent conditions.-A condition precedent is an act or event which must be performed by one party or exist before any obligation arises upon the other party to perform. Any fact or event which is capable of being a condition of any kind may be a condition precedent, but generally the fact or event consists of some act to be done by the promisee. Where A agrees to perform work for B, for which B is not to pay until A completes his service, performance by A is necessary before he may claim any payment under the contract. B may not be called upon to fulfill his promise until the condition precedent, i. e., the performance of the work, is completed. The promise of A is independent and abso72 Costigan, Performance of Contracts, p. 10. lute, whereas the promise of B is dependent on and subject to a condition precedent. The distinction between conditions expressed, implied in fact, and implied by law applies to precedent conditions. 163. Conditions concurrent.-Conditions are concurrent where the liability to perform on one side is dependent upon the simultaneous performance on the other side. Such conditions are also known as mutually dependent conditions.73 The act which must precede liability on each side is tender of performance on the other side. If A agrees to sell B a horse and B agrees to pay $100 for the animal, and if A desires performance, he must tender the horse to B. If B desires performance, he must tender the money to A. There are two things to be done, each is a condition of the other, and they must be performed concurrently.74 Concurrent conditions may be express, implied in fact, or implied by law. The greater number of such conditions are of the last class, for wherever possible concurrent conditions are implied by law upon the general ground that the performance on one side of the contract is intended to be in exchange for the performance on the other. Concurrent conditions protect both parties, for they 73 Langdell, Summary of Contracts, § 105. 74 Some writers take the view that conditions concurrent are only a species of condition precedent, since "an offer to perform the act called a condition concurrent'' is necessary to put the other party in default. See Harriman, Contracts (2d ed.), § 303; 14 Yale Law Journal 424. In conditions precedent, however, actual performance must be proved, whereas in conditions concurrent, tender of performance is sufficient. It is convenient to separate such cases. do not require either party to trust the other. There are certain requirements, however, which must be satisfied before such conditions are possible and appropriate. Thus, the promise of each party must be capable of performance in a moment of time; otherwise, it would not be possible for them to be performed concurrently. Secondly, the object of the promises must be the exchange of some property or right for some other property or right. Thirdly, this exchange must be between the parties; otherwise, in legal contemplation it cannot be made in an instant of time. Thus, mutual promises between A and B that A shall give to B and B shall give to C will not be made mutual covenants, unless by express arrangement. In the fourth place, the promises must be capable of performance at the same time; otherwise, they will violate the first rule.75 164. Conditions subsequent.-A condition is subsequent where an existing liability to perform is to be determined or put an end to by some act or event. Here the liability has already accrued, but is discharged by the performance of a condition subsequent, which is any fact or event that will relieve the promisor from a default under the contract. In a bond, if A promises to pay B $1,000, and it is provided that if A faithfully performs his services then the bond is to be void, A is under an existing liability to pay a sum to B. But upon his faithful performance of the duties the liability is determined. In short, the fact of A's faithful performance relieves 75 Langdell, Summary of Contracts, § 133. him from the cause of action on the bond. This is the condition subsequent. In the law of contracts, but not in the law of real property, courts imply, wherever possible, conditions concurrent as between conditions concurrent and precedent; and conditions precedent as between conditions precedent and subsequent.76 Subsequent conditions that are really such are rarely found. The way to test a condition subsequent in form to see if it is subsequent in reality is to try to put it in precedent or concurrent form. If this can be done, and the intention of the parties can nevertheless be fulfilled, the condition is not a genuine condition subsequent. The rule is generally stated to be that subsequent conditions may only be express conditions." But in the case where a contract provides for payment by instalments, due at different times, the instalments may be successively sued on as they become payable. Each action, however, should include every instalment due.78 At each breach a cause of action arises, but in order that the party in default may not be vexed by unnecessary separate actions the law annexes to each cause of action, as it comes into existence, a condition to the effect that if a subsequent cause of action for a breach of the same contract arises and is prosecuted to judgment in an action in which the earlier cause of action, not previously sued 76 In the case of certain contracts, however, such as fire insurance policies, the courts favor treating the conditions as subsequent. Costigan, Performance of Contracts, p. 26. 77 Anson, Contracts (Huffcut's 2d ed.), § 382. 78 Seed v. Johnston, 63 N. Y. App. Div. 340, 343. |