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upon, is not joined, the earlier cause of action shall thereupon terminate.79

Thus, A agrees to buy of and pay B for an order of goods as follows: $500 on February 1st, $800 on April 1st, and $1,000 on June 1st. A defaults on the first payment. B may sue at once for $500 or he may wait until the April payment is also in default and sue for $1,300. But if B sues for $800 without previously having sued for the $500 instalment, the cause of action for the latter will terminate. It is this condition of combining prior instalments which is believed to be subsequent.

165. Pleading and proof.-In pleading the plaintiff must allege actual performance of a condition precedent. Moreover, he must prove that allegation at the trial. Thus, where A agrees to write an article for B before he is to receive payment therefor, he must allege in his claim and prove at the trial that he actually wrote and tendered the article before he may obtain a judgment against B for the contract price.80

Where there are concurrent conditions, the plaintiff must plead an offer to perform and a refusal by the other party. He must show his readiness and ability to perform. In the contract between A and B for the sale and purchase of a horse, if A is suing B, he must allege that he offered the horse to B, and is willing and ready to sell the animal before he may recover. If B sues A, he must allege that he offered

79 Costigan, Performance of Contracts, p. 19.

80 Langdell, Summary of Contracts, § 30; Harriman, Contracts (2d ed.), § 337.

the money to A, and is willing and ready to pay for the horse.81

In conditions subsequent, the burden is generally on the defendant and he must plead and prove actual performance. In the case of a bond with a condition, whereby A promises to pay B $1,000 subject to the condition that if A does certain work faithfully the bond is void, if B sues A, then to defeat the action A must allege and prove that he did his work faithfully.

Although the cases as to the burden of proof relating to actions on bonds are not uniform and the law is not settled,82 the rules as to conditions in insurance cases seem to be generally followed. Thus, while the plaintiff is required to allege performance of conditions precedent, yet the defendant has the burden of proving the facts constituting any alleged breach of the contract.

This is based on the rule, now generally recognized, that in order to raise an issue on the plaintiff's general allegation of performance, the defendant must particularly allege the breach. This seems to be the rule for insurance cases whether the breach complained of is that of a condition precedent or subsequent. Thus, the defendant must prove such breaches

81 Costigan, Performance of Contracts, pp. 19-25, 35. The evidence by which this offer can be shown is another matter. A request or a notice may be sufficient indication to the defendant that the plaintiff not only wishes the defendant to perform but is himself ready to perform. Certainly a formal tender either of goods or money is not necessary, but in the absence of any legal excuse, some notification that in effect amounts to an offer to perform, coupled with an immediate ability to perform, seems requisite, both on principle and authority, in order to give the plaintiff a right of action. Williston, Sales (2d ed.), 448.

82 Moody v. Insurance Co., 52 Ohio St. 12.

as a vacancy of the premises in violation of the policy.83

166. Representations and warranties.-A representation is a statement of some matter or circumstance relating to the contract and which either in part or altogether induces its formation by the parties. The representation may be either expressed or implied by conduct, and may be made before or at the time of the making of the contract. Representations which do not form a part of the contract are either immaterial or in the nature of conditions going to the existence of the contract. Hence they do not enter into the question of the performance of conditions in existing contracts. In turn representations which are embodied in the contract may be merely representations, or conditions as well. If the latter, it may be as to either a material or an immaterial matter. Furthermore, a material representation may amount to a warranty.

Ordinarily, a warranty is a contract collateral to a legal transaction and by which a party thereto undertakes or promises that certain facts are or shall be as he represents them. A breach of warranty gives rise to a claim for damages in contract, and the untruth alone of the warranty is sufficient for a cause of action. But in a suit on a representation, the plaintiff must prove that the representation was made fraudulently or recklessly in known ignorance of the facts.

Unfortunately, the term "warranty" is used in a variety of senses. It is used in the law of real prop83 Moody v. Insurance Co., 52 Ohio St. 12.

erty, where, however, it does not have the sense of a condition.84 As used in a sale of personal property in some jurisdictions, it is a collateral statement or representation to the contract of sale having reference to the character of, the quality of, or the title to, the goods sold, and by which the warrantor promises or undertakes that certain facts are or shall be as he represents them. Such a warranty is not a condition. But in other jurisdictions, the collateral promise conception is ignored and such a material promise is made a condition. In such courts, if the condition is broken the buyer may repudiate or rescind the contract.85

In cases of insurance policies and charter parties the term warranty usually does not have the meaning of a collateral promise, but means that the thing warranted is a condition. In such contracts, it is a representation or promise which is so essential a part of the contract that its truth or performance is a condition precedent to the other party's liability to perform.86

In such cases the terms "warranty" and "condition" are often confused and used interchangeably. The distinction, however, is clear. In speaking of a representation by A to B, as a warranty, that representation is considered with reference to A's obligation, but when the same representation is regarded 84 Costigan, Performance of Contracts, p. 29.

85 Williston, Sales (2d ed.), 608, 181; Uniform Sales Act, § 12, 69.

86 Insurance and charter party contracts are governed by the law merchant and hence taken largely from the Roman Law, which states that the obligation of a contract is to do what good faith demands. The common law conception, however, as applied to other contracts, is to do what the parties intended. Ollive v. Booker, 1 Exch. 416 (Eng.).

as a condition, the effect of that representation on B's obligation is the question concerned.87

Whether a representation or promise in a policy of insurance or a charter party is also a warranty depends on whether the parties have expressedly, or by unexpressed intention gathered from the whole contract, made the validity of, or liability under, the contract dependent on the truth or the performance of such representation or promise. A fair construction of the contract as a whole is the determining element, and no particular form of words is alone conclusive. This is true even if the word "warrant' appears.88 In cases of doubt, the policy is construed in favor of the insured, and the statements made by the applicant for the insurance, for instance, will be held as representations merely. But a guaranty of the truth of a representation which forms a part of the contract is a condition precedent to recovery in the law of insurance and of charter parties.89 This condition precedent, however, differs from an ordinary condition precedent in that the defendant must allege and has the burden of proving its falsity or breach, as indicated in a prior section.

When used in reference to statements or promises in general mercantile contracts, the word warranty is properly used only as to that which is a condition. Thus, in the contract of a merchant, a statement

87 Harriman, Contracts (2d ed.), § 311.

88 Globe Mutual Life Insurance Association v. Wagner, 188 Ill. 133. 89 McClain v. Provident Co., 110 Fed. 80. By statutes in a number of the states no misrepresentation or warranty will defeat recovery on an insurance policy unless the misrepresentation is made with actual intent to deceive or the matter misrepresented is material to the risk. See subject, INSURANCE.

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