descriptive of the subject matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and maritime law; that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract.90

90 Norrington v. Wright, 115 U. S. 188.

CHAPTER XIV.

RULES ON CONDITIONS.

167. History of conditions.-Originally in the common law there were no conditions except express ones. This seems to have remained true until after simple bilateral contracts were enforced. But as justice demanded the finding of conditions, the courts would scrutinize contracts under seal containing mutual covenants for express conditions, and they did so even before simple bilateral contracts were recognized. "This gave great importance to the precise terms in which mutual covenants were expressed, and it not infrequently happened that a single word turned the scale. Thus, if A covenanted with B to give or do something for something else which B covenanted to give or do in return, it was commonly held that the word 'for' made A's covenant dependent upon B's.'' 91 This undue emphasis on such a word as "for" as importing an express condition was the result of the feeling of the judges that performance should be conditional on performance at a time when the judges had not yet reached the conception of conditions as capable of implication. Later,a2 in 1773, it was held that the dependency of one covenant upon another would be implied so as to create a condition precedent by implication. In 1792, con

91 Langdell, Summary of Contracts, § 140. 92 Same.

92

current conditions were implied in a case, since which time the doctrine of mutual dependency has been established.9

93

168. Rules on express conditions.-Express conditions may exist both in bilateral and unilateral contracts, and it is immaterial whether or not there are also implied conditions in the same contract. Courts construe the language of an express condition, wherever possible, in such a way as not to work an unjust forfeiture or oppression. For instance, in insurance contracts, the courts will go far in construction to help out the insured. "Policies are drawn by the legal advisers of the company, who study with care the decisions of the courts, and, with those in mind, attempt to limit as narrowly as possible the scope of the insurance. It is only a fair rule, therefore, which the courts have adopted, to resolve any doubt or ambiguity in favor of the insured and against the insurer.” 94

Wherever it is doubtful whether certain words do or do not constitute an express condition, Professor Langdell lays down the rule that it is then material to inquire whether they constitute a promise, for if they do not, that will be an argument in favor of their being a condition, "it being a cardinal rule of interpretation to give effect in some way to all the words of a contract, if it be possible."95

Although some matter is apparently of very little 93 Goodison v. Nunn, 4 T. R. 761 (Eng.); Langdell, Summary of Contracts, § 133.

94 Taft, J., in Manufacturers' Accident Indemnity Co. v. Dorgan, 58 Fed. 945, 956; Langdell, Summary of Contracts, § 33, and rule 2 on Express Conditions.

95 Langdell, Summary of Contracts, rule 4 on Express Conditions.

importance, the parties may consider it essential. Consequently, if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one. On the other hand, they may think that the performance of some matter, which is apparently of essential importance and prima facie a condition precedent, is not really vital and may be compensated for in damages, and if they sufficiently expressed that intention, it will not be a condition precedent.9 Similarly, the intention of

the parties determines whether or not the word or clause in which an express condition is found is also a covenant or promise.

An express condition may be waived. Thus, if after a breach of a condition by A, B chooses to go on with the contract, he thereby waives the breach as a breach of condition. But he may sue for damages for the breach of the contract unless the breach of contract is also waived. Whether or not this is the case, is a question of fact in each case. Where A agrees to deliver 10,000 boxes, of which 4,900 were not in accordance with the contract, B is allowed to recover in damages for the failure to perform literally although he waived the breach of condition. Some jurisdictions hold, however, that in contracts of sale the buyer's acceptance of goods not only waives the non-performance of the condition but also any right to damages for defective quality or for delay in performance.97

96 Bettini v. Gye, 1 Q. B. D. 183 (Eng.); Adams v. Guyandotte Valley R. Co., 64 W. Va. 181.

97 Langdell, Summary of Contracts, rule 11 on Implied Conditions, and rule 1 on Express Conditions; Williston, Sales (2d ed.), §§ 485, 487, 489.

169. Performance dependent on approval.-Frequently building contracts contain an express provision providing that the contractor is to receive the agreed price only upon the approval by an architect of the work done. The decisions in reference to such certificates are not harmonious. Ordinarily, the judgment or estimate of such third party is binding on the parties to the contract and the express condition must be literally complied with.98 But everywhere it is held that the fraudulent collusion of one

party with the architect will excuse the non-performance of the express condition.99 In the United States, the fraud of the architect or his refusal to exercise an honest judgment, even if done without collusion, excuses a failure to produce the certificate.1

But if the promise is made merely upon the will of the promisor, a mere voluntary obligation arises. Thus, to agree to furnish lumber in such quantities as one may "deem fit and advisable" is to promise to furnish nothing. The promisor may cease furnishing the lumber whenever he pleases.

170. Contracts conditional upon satisfaction.— Performance of a contract may depend upon the

98 Bush v. Jones, 144 Fed. 942.

99 Batterybury v. Vyse, 2 H. & C. 42 (Eng.).

1 In New York it seems that the court may disregard the express condition precedent and substitute its judgment or that of the jury for that of the architect if the defects for which the architect refuses to certify seem trivial. This doctrine must not be confused with the rule that in the absence of express conditions a substantial performance of a building contract entitles the contractor to recover the purchase price less proper deductions for the unperformed part. Nolan v. Whitney, 88 N. Y. 648; Keeler v. Herr, 157 Ill. 57. The latter doctrine is one of conditions implied by law in the absence of express conditions. Handy v. Bliss, 204 Mass. 513. See Clarke v. Watson, 18 C. B. (N. S.) 278 (Eng.).